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pfa

The violation of a PFA involves a criminal proceeding called an “indirect criminal contempt” action, or ICC. The burden of proof is “beyond a reasonable doubt” and with criminal penalties applying (including incarceration), an ICC determination must comport to criminal law.

In criminal law, ordinary negligence is not punishable. So if a person negligently makes a post – that could be interpreted as harassment by the petitioner having a PFA order – is that punishable by an ICC?

Recently, in Elonis v. United States (Docket No. 12-983, Term 2014), and appeal from the US Court of Appeals, Third Circuit, the Supreme Court of the United States addressed the state of mind requirement needed to support criminal prosecution. There, the Supreme Court of the United States held:that “wrongdoing must be conscious to be criminal” and the actor must have the awareness that the statement threatens, rather than whether a “reasonable person” would consider the statement a threat. The court further reasoned that, to hold otherwise would be to apply a negligence standard to criminal conduct; a standard the court reaffirms has historically been avoided. As explained in the legal intelligencer:

The application of the Elonis decision to Pennsylvania’s criminal statutes and protection-from-abuse laws is unclear, but Alito’s vision of a recklessness standard for such statements is likely to emerge as the law on this issue.

A recklessness standard for such statements makes sense in the context of an indirect criminal contempt charge under a protection-from-abuse order. Where a protected party either shares social media contacts with their abuser; the abuser uses an open forum to post statements; or the abuser knows the victim will read or be exposed to the statements, would it not be a violation under 23 Pa.C.S.A. Section 6108(a)(6), prohibiting the defendant from having any contact with the plaintiff, or under Section 6108(a)(9), prohibiting the defendant from stalking or harassing the plaintiff, as defined by the criminal statute? Where the intent is to post statements to social media knowing the likelihood of exposure to the victim, it is likely to be considered an indirect attempt at contact, if not direct contact outright.

As argued by Thomas in the dissent, the argument made by Elonis would make threats such as his one of the most protected categories of unprotected speech. Elonis intended to terrify the subjects of his rap lyrics, thus upholding his conviction would neither reject nor ignore a mental intent standard, Thomas said. Restricting such statements, Thomas reasoned, is akin to restrictions on “fighting words,” which require no proof of intent to provoke a violent reaction but are defined by what language an “ordinary citizen” would react to. Thomas ultimately finds that the majority’s opinion leaves that question as to whether Elonis’ statements are protected speech unanswered and the lower courts without definitive guidance.

It is unlikely the majority opinion of Elonis will have a chilling effect on prosecutions or convictions based on similar threatening statements. The Elonis majority opinion did little, if anything, to address social media and Internet speech or give guidance as to whether such speech purposefully disseminated over social media violates state and federal criminal codes or protection-from-abuse orders.

Where the majority opinion reaffirms that negligence is not an appropriate standard of mental intent, Alito’s concurrence articulates a standard where a statement’s purposeful dissemination over social media moves it beyond “negligence” to where the “recklessness” of the act allows the courts to consider the victim’s interpretation of the statement. Consistent enforcement of protection-from-abuse orders and convictions, even without the support of the Elonis majority opinion, may eventually give rise to an appeal that will allow the court to consider Alito’s proposed recklessness standard or some other level of protection, if any, Elonis threats are entitled to receive.

We will keep you posted about whether state or federal law articulates a clearer standard about what type of social media post can trigger punishment for an indirect criminal contempt. In the interim, those subject to a PFA order are wise to avoid social media altogether, absent use for clearly commercial purposes.

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Nothing says “I love you” like a restraining order, according to the song by post-hardcore band Our Last Night. All kidding aside, a restraining order – a/k/a Protection From Abuse Act Order (“PFA”) – is serious business. No level of abuse should be tolerated. Any amount of abuse is too much. For this reason, the Pennsylvania legislature created the concept of a PFA, which creates an immediate right to have a person tossed in jail, if he violates either the temporary or “permanent” PFA.

A PFA can save a person’s life.

Unfortunately, abuse can go both ways. It is not uncommon for the PFA procedures in PA to be abused by those looking to go on the offense against a current (or former lover) or family member when no “abuse” or fear of abuse ever existed. So long as a person is willing to testify that another person (related by blood, prior sexual relations, or affinity) was physically abused or made serious threats, the entry of a PFA order is a near certainty unless the party defending the action has some pretty reliable evidence to the contrary. This is the case mostly because the courts err on the side of separating the parties and entering a PFA.

Meeting the threshold amount of evidence to obtain a PFA is easy for those willing to distort the truth. The term “abuse” is defined pretty liberally in the PFA statute:

23 Pa.C.S. § 6102 (2012)

§ 6102. Definitions.

(a) General rule. –The following words and phrases when used in this chapter shall have the meanings given to them in this section unless the context clearly indicates otherwise:

“Abuse.” –The occurrence of one or more of the following acts between family or household members, sexual or intimate partners or persons who share biological parenthood:

(4) Physically or sexually abusing minor children, including such terms as defined in Chapter 63 (relating to child protective services).

(5) Knowingly engaging in a course of conduct or repeatedly committing acts toward another person, including following the person, without proper authority, under circumstances which place the person in reasonable fear of bodily injury. The definition of this paragraph applies only to proceedings commenced under this title and is inapplicable to any criminal prosecutions commenced under Title 18 (relating to crimes and offenses). (Emphasis added).

As you can see, a PFA can be warranted where no physical harm results. Rather, an “attempt” to cause “fear” is enough. The definition is broad enough to include stalking or repeated interaction, which could mean having coffee at the same Starbucks as the Plaintiff, by chance or routine, every day, or driving past the plaintiff’s home if it’s on the defendant’s way to work every day, so long as that puts the plaintiff in “fear.” (Do you see how this well-meaning statute can be abused?)

The blind entry of a PFA can cause enormous prejudice to the defendant, who may have been innocent of any wrongdoing. A PFA can be used to wreak the following on an innocent person, who may face one or all of the following through an improper PFA:

Immediate eviction from his residence with the Plaintiff

Loss of freedom to travel down a street where the Plaintiff lives, even if it’s on the defendant’s way to work

Loss of the right to possess firearms even if the Defendant is and avid gun collector or merchant of weapons for a living

An order for child support even though no formal claim for support had been filed through the family courts

The court costs of the PFA (over $200),

The PFA can be served on the Defendant by sheriff or constable when the defendant is at work, ruining his reputation;

The PFA can be used for leverage in any custody, divorce, or support proceedings, and

The court may impose other relief that the court deems fair and just.

A PFA also creates a mark on a person’s permanent and public record. Although a PFA does not create a criminal record per se (unless one violates the PFA and is found guilty of indirect criminal contempt), a PFA does appear on the civil docket as a finding of abuse, which the world can see, because the civil docket is public record.

Most employers only search one’s criminal records via the state police website, but some also check the civil dockets for blemishes. We know for sure that those applying for section 8 housing will be subject to a search of PFA instances.

It is possible to have a temporary PFA expunged from the civil docket (which based on only one party’s side of the story, also called ex parte), but not a permanent PFA. This is because, expungement applies to the removal of charges and accusations, not actual findings of fact related to a full hearing where all parties may attend. Thus, if you are found to be an abuser following a hearing where you had a chance to testify, that record cannot be removed. Thus, to be clear, if you go to court on the PFA and lose such that it becomes permanent, then the permanent PFA cannot be expunged. An excellent analysis of this concept appears in a blog by Linda A. Kerns, who practices in Eastern PA.

For these reason, if you have had a PFA served on you, you should immediately seek experienced counsel to defend the action or get the opposing party to accept some deal short of permanent PFA. We get at least one call a month from some poor, unfortunate individual who decided to attend the hearing on the PFA alone (or with a family “friend” attorney who doesn’t handle these cases regularly) and came away from the process with a 3 year PFA against him.

Also keep in mind that, if you go to a hearing and lose, the PFA order is not the only public record, but rather, the testimony against you is also recorded and a transcript of the same can be ordered by anyone with a beef against you, so he or she can read about all the different forms of abuse according to at least one witness under oath.

We strongly recommend that you seek experienced counsel in defending against any PFA action. Out East, consider Linda A. Kerns, Esquire, who wrote about whether a PFA can be expunged. In Harrisburg and Millersburg, consider Shaffer & Engle, which did a nice analysis of “bad faith PFA“s on their blog. For all matters in Western PA including Pittsburgh (and all of Allegheny County and the surrounding Counties – Beaver, Butler, Washington, consider our Pittsburgh PFA lawyers.